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A change of pace in the UK copyfight

It's unusual to see issues related to copyright law and its reform make much of an impact in the mainstream media here in the UK, but last week's report from the Institute of Public Policy Research, entitled Public Innovation: Intellectual Property in a Digital Age has been a notable exception. Despite its rather dry title and hundred-odd pages of academic wrangling, the IPPR's report provoked a furore of interest, due to the fact that it recommends giving consumers a 'right to private copy' - effectively legalising the 'format shifting' of media, for instance by copying a CD onto a user's PC or mp3 player.

This came as some surprise to a great many people, who had assumed that making 'private copies' in this way was already perfectly legal, leading to the unprecedented amount of publicity that the report received. While it is true that this particular aspect of the IPPR's recommendations is noteworthy in itself, it is also indicative of a fundamental departure from the typical UK view of copyright legislation, a development which offers hope for copyright liberals in the UK.

Unlike the US, we in the UK have no legal right to make copies of legitimately purchased copyrighted media, neither do we have what US citizens refer to as 'fair use' rights, having instead to make do with an altogether more limited set of 'exceptions and limitations' to copyright known as 'fair dealing'. The result of this is that despite the best efforts of the MPAA and RIAA, Jack Valenti and Mary Bono, many of us in the UK have a tendency to envy the comparative freedoms enjoyed by our neighbours on the other side of the Atlantic.

This discrepancy in the rights afforded to consumers by our respective copyright laws results in part from the differing justifications for copyright law in the two countries. Unlike the US, whose copyright law is based upon the impressively utilitarian concept of "promot[ing] the Progress of Science and useful Arts" enshrined in the constitution, Copyright legislation in the UK has, since approximately the 19th Century, typically been justified in terms of protecting the author's investment in their own work - inferring that authors have a 'natural right' to profit from the fruits of their labour [1].

As a result of this, changes in copyright legislation in the UK tend to lean in favour of copyright holders rather than the public interest, a situation which often seems to go unchallenged. However, the IPPR's report, as well as promoting specific consumer rights such as the 'right to private copy' that has been so widely publicised, is also notable for the fact that it is possibly the first report of its kind from a major political think-tank to advocate redefining copyright law from a standpoint that "recognises the interests of the public first and foremost" [2].

For all those in the UK involved in Free Culture or Free Software, or anyone who advocates the liberalisation of copyright law, this is a subtle but important victory. It is still very doubtful that the Gowers Review into Intellectual Property legislation will recommend the drastic curtailment of copyright term, the immediate repealment of any laws outlawing the circumvention of DRM, or any of the other measures that I and many others hope for. However, the fact that policy makers are beginning to recognise the importance of public access to knowledge, and the advantages of basing information policy primarily on public interest is a fundamental paradigm shift which has the potential to lead to further advances for the Free Culture and Free Software movements.

Well, it's true to state that the the origins of copyright in the UK (the Statute of Anne of 1710) are based on a utilitarian concept of copyright similar to that of the US (The Statute of Anne is described within its own text as "An act for the encouragement of learning"). However, in 1886 the UK ratified the Berne Convention, which was very much influenced by the French concept of the droit d'auteur - I personally would see this as the point at which copyright in the UK started being discueed in terms of natural, rather than statutory rights.

In any case, whether the 'natural rights' reasoning for copyright law is a recent phenomenon or not, I'd still consider the IPPR's rejection of it to be a significant step for free culture.

Moral rights are about accuracy of attribution, and the right to privacy. People may mistake the right to integrity as a right to prevent derivatives, but this is a distortion.

The idea that an author is entitled to control what people do with his work arises from the relatively recent concept of intellectual property extending to published works - given that indefinite extension of copyright has begun to establish this assumption, i.e. that copyright grants an author ownership. People are easily led to believe commercial privileges are rights, given enough spin.

I understand the difference between moral rights and copyright, however the droit d'auteur in the French conception of copyright encompasses both moral rights (droits moraux), and proprietary rights (droits patrimoniaux). The 'proprietary right' refers to the economic aspects of copyright, and which are justified, in the French legal system, as natural rights.

Here's a copy of the French Code de la Propriete Intellectuelle, and an English translation (courtesy of WIPO). Under the heading 'Justification for Copyright', Art. L. 111-1. states that:

'The author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive incorporeal property right which shall be enforceable against all persons.'

This is at odds with the UK / US conception of copyright that you refer to as it treats copyright as both a property right and as a natural right, a point of view that gained currency in the UK when we became a signatory to the Berne Convention, which is formulated along the lines of the French justification for copyright.

The droits patrimoniaux, if they apply even after publication (non-contracted distribution), do indeed seem to attempt to establish the author's natural right to their intellectual works. The limitation to death+70 a mere inexplicable detail.

So, if the Berne convention embraced droits patrimoniaux (was it death+70 even in 1886?), then this may represent the earliest record of its establishment, but does it represent the point at which published works became equivalent to private property in the popular consciousness?

If the IPPR is challenging droits patrimoniaux (at least post-publication) then this is good news.

I hope the IPPR recommends far greater take up of droit moraux, because the UK has not fully embraced them in all areas.

I know - the time limit puzzles me, too... If the droit patrimoniaux is a natural right, surely that exists in perpetuity? (assuming, of course, you recognise that right). Perhaps the time limit is a generous concession on the part of authors, in the interest of preserving the public domain... </sarcasm>

In any case, I believe (AFAIK) that the 1888 copyright term under Berne was life plus 50 - this was extended to life plus 70 comparatively recently.

I've got a very good essay somewhere comparing the droit patrimoniaux to the US conception of copyright and analysing the justification for both. Can't find it at the moment, but I'll post it up here when I find it!

I suspect droits d'auteur dilutes the meaning of droits by using 'droit' both as natural right as well as statutory privilege.

Natural rights I would have thought are those things that the individual is strongly inclined to and often able to protect by their own efforts. Usually applauded by all as worth protecting by any state on behalf of its citizens.

I can protect my person, the privacy of my domain and my property within it, uphold my honour to truth in all things, and respecting this of others, otherwise enjoy freedom in society. I would wish any state to enshrine this.

What I cannot do is police the entire countryside prosecuting anyone I find reproducing or building upon artworks I have previously sold at a market place. That is of course unless they have demonstrated dishonour through falsehood (passing off, plagiarism, misrepresentation, etc.). What other citizens would believe I had a natural monopoly to exploit the art I created (itself built upon by my experiences of other's art)?

Such monopolies are not rights, but privileges, granted and protected by the state.

The privilege actually suspends the public's right to freedom of expression.

Someone needs to remind the French what is meant by liberté, égalité, fraternité.

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Biography

Tim is a Free Culture and Digital Rights activist (amongst other things) from London, UK. He also writes a sporadically updated and chaotically disorganised weblog at http://www.continuingadventures.co.uk